The State of Western Australia v Dbno
[2019] WADC 135
•20 SEPTEMBER 2019
JURISDICTION : DISTRICT COURT OF WESTERN AUSTRALIA
IN CRIMINAL
LOCATION: PERTH
CITATION: THE STATE OF WESTERN AUSTRALIA -v- DBNO [2019] WADC 135
CORAM: PRIOR DCJ
HEARD: 26-28 AUGUST 2019
DELIVERED : 20 SEPTEMBER 2019
FILE NO/S: IND 2085 of 2018
BETWEEN: THE STATE OF WESTERN AUSTRALIA
AND
DBNO
Catchwords:
Sentencing - Trial of issues - Indecent dealing of a child under 13 years of age
Whether the offender's partner arranged the child to carry out the offences committed
Whether the offender's partner was present when the offences were committed
How many times did the offender engage in acts of indecent dealing with the child
Prosecution required to prove aggravating factor beyond reasonable doubt and offender required to prove mitigating factors on the balance of probabilities
Legislation:
Sentencing Act 1995 (WA) s 15
Result:
Defence failed to prove mitigating factors
State failed to prove aggravating factor
Representation:
Counsel:
| The State of Western Australia | : | Mr G Huggins |
| Accused | : | Mr S D Freitag SC |
Solicitors:
| The State of Western Australia | : | State Director of Public Prosecutions |
| Accused | : | Chambers Legal |
Case(s) referred to in decision(s):
Law v State of Western Australia [2009] WASCA 193
PRIOR DCJ:
Introduction
On 26 August 2019 DBNO (DO) entered pleas of guilty to the following four counts as amended on indictment 2085 of 2018 dated 25 January 2019 (the indictment):
1.On a date unknown between 30 October 2017 and 20 February 2018 at Gosnells he indecently dealt with TLM (TM) a child under the age of 13 years by procuring TM to apply soap to his naked body.
2.On the same date and the same place as count 1 he indecently dealt with TM a child under the age of 13 years by procuring TM to apply body lotion to his groin.
3.On or about 20 February 2018 at Gosnells he indecently dealt with TM a child under the age of 13 years by procuring TM to apply soap to his naked body.
4.On the same date and the same place as count 3 he indecently dealt with TM a child under the age of 13 years by procuring TM to apply body lotion to his groin.
Once the pleas of guilty were entered by DO, the State Prosecutor discontinued the prosecution with respect to counts 5, 6 and 7 on the indictment.
The matter then proceeded to a trial of issues as there was a dispute with respect to the facts to be found for sentencing in relation to counts 1, 2, 3 and 4 on the indictment.
The factual dispute between the prosecution and defence was as to the following issues:
(a)Did GD the wife of DO arrange for TM to do the four acts the subject of counts 1 – 4 on the indictment (the first factual issue).
(b)Was GD present when the four acts the subject of counts 1 - 4 on the indictment took place (the second factual issue).
(c)How many times did acts of indecent dealing similar to those represented in counts 1 – 4 on the indictment occur. Therefore, were the acts the subject of counts 1 – 4 on the indictment representative of the relationship between DO and TM (the third factual issue).
It was common ground between both parties during the trial of the issues that the offences the subject of counts 1 and 2 occurred on the same day in February 2018 and the offences the subject of counts 3 and 4 occurred on another day approximately two weeks later in February 2018. The offences the subject of counts 1 and 3 occurred in the bathroom in DO's house which was shared by all occupants. The offences the subject of counts 2 and 4 occurred in DO's bedroom. DO's bedroom was approximately 3 metres from the bathroom. There was no dispute in the evidence that both DO and GD were suffering from significant ill health in February 2018. The health conditions that both DO and GD suffered from impacted on their flexibility and mobility.
In Law v State of Western Australia [2009] WASCA 193 Buss JA at [25] – [34] summarised the relevant legal principles that apply in relation to how a sentencing judge should deal with a matter when there was a dispute on the factual basis on which an offender should be sentenced.
It was agreed by the parties that the first and second factual issues were mitigating factors and therefore the defence was required to prove these facts on the balance of probabilities.
It was agreed by the parties that the third factual issue was an aggravating factor and therefore the State was required to prove those facts beyond reasonable doubt.
At the hearing of the trial of the issues the following witnesses gave evidence:
(i)The child TM. Her evidence was a visually recorded interview on 16 April 2018 (the interview) and pre-recorded evidence on 2 May 2019 (the pre-recording). The DVDs of the interview and the pre-recording were played;
(ii)GD, DO's wife, who is TM's grandmother and guardian; and
(iii)DO.
The child TM was born on 15 March 2008. She was therefore 9 years old when the offences were committed, 10 years old when interviewed and 11 years old when she gave her pre-recorded evidence. TM referred to GD, her grandmother as 'mum'.
In addition to the witnesses who testified at the trial, the parties also relied upon:
(i)The evidence contained in the DVD of the police search of DO's house on 29 May 2018.
(ii)The evidence contained in the DVD of a subsequent police search of DO's house on 3 July 2018.
(iii)A pink loofah seized by the police from DO's house.
(iv)Photographs taken by the police of the shared bathroom and the bedroom used by TM at DO's house.
(v)DO's Court Outcomes History, which indicated he had no previous criminal record.
(vi)An affidavit of Joanne Louise Wilkinson sworn 8 August 2019 which had attached to it a letter from Silver Chain to DO and invoices for nursing services provided by Silver Chain to DO.
(vii)Progress notes of services provided by Silver Chain to DO from 20 December 2017 – 19 August 2019 at DO's house. These progress notes indicate that Silver Chain employees regularly assisted DO in his showering and dressing at his home.
In relation to the police search of DO's house on 3 July 2018, the only part of that search that was relevant for the trial of issues was an admission made by him to a police officer which appears in pages 6 and 7 of the transcript of the search of DO's house and is recorded as follows:
DO: [indistinct] in August. And, ah, she gained a bit more weight, got up to about forty-nine kilos, just before she left. But she did nothing around the house. And of course it's got worse and worse and worse. And I, I was then [indistinct] having to hold on in the shower. I couldn't stand properly at all. Ah, so I had to have assistance all the way through. And then, of course she, she, she took off. So it's been really, really hard. Um, and, ah, oh, since, ah, December, I've had, um, um [indistinct] coming in, 'cause she couldn't even shower me. And that is why i-, i-, ah, ah, she got (TM) to shower me on the two occasions. [indistinct] - - -
S/Con Huber: Just - - -
DO: [indistinct] in the doorway.
The other evidence contained in the DVD of the police search of DO's house on 3 July 2018 relates to the counts on the indictment which were discontinued.
The first and second factual issues in dispute
In TM's interview when describing the acts of indecent dealing that DO has been convicted of, she consistently refers to DO as making her commit the acts that constitute the indecent dealings. TM did not refer to GD being present in the house or having any involvement in her committing the acts involving DO. TM refers to her mum (GD) being out at the shops and DO sending her mum out. TM also referred to other acts of discipline, abuse or violence DO committed on her but said these acts also occurred when her mum (GD) was not at home at the time.
When TM was asked in the interview about when the offences that are counts 3 and 4 on the indictment occurred, she stated that her mum (GD) was at the shops. When TM described the first time indecent acts occurred with DO, which are counts 1 and 2 on the indictment, she refers to DO making her do these acts, directing her and threatening her at the time. TM again stated that her mum was out at the shops, DO had sent her mum (GD) out to the shops or other places when these acts occurred. TM stated that all the acts of indecent dealing with DO had occurred before her mum (GD) came home.
In TM's pre-recording she confirmed that what she said in the interview was the truth.
In cross-examination in TM's pre-recording when she was asked, 'Did GD ask you to help her shower DO?' She responded 'No, she didn't.' She also denied that GD asked her to put DO in the shower or GD undressed DO when TM showered DO. She accepted on the days she showered DO, GD was too sick to do it herself. TM stated DO asked her to shower him.
TM in the pre-recording admitted that she assisted DO to get dressed in his bedroom in the mornings before she went to school by putting his socks on and pulling his underwear up.
TM gave evidence in the pre-recording that she had seen the nurses showering DO.
In cross-examination in the pre-recording TM denied that GD had asked her to put cream on DO's rash and she accepted she put cream on DO's rash.
When put to TM in the pre-recording that GD had slapped her on the face and thighs she denied this. TM later admitted GD sometimes slapped her on the thigh or arm. TM gave evidence that she never showed GD marks or bruises she received from DO slapping her. GD on occasions asked TM what had happened when she saw marks or bruises on TM. TM said she told GD lies as to how she had incurred the injuries.
TM was consistent throughout her cross-examination that GD was not watching when she showered DO, GD was not watching when she put cream on DO and that GD did not ask her to do these acts to DO or that GD thanked her for doing them. TM denied that GD asked her to lie about GD not being in the room at the relevant times when the offences were committed. TM accepted that nurses would come to the house and shower DO twice a week.
GD in her evidence said she was not aware TM was showering DO. She denied telling TM to shower DO or having any conversations with TM about her showering DO. GD confirmed that on Saturday, 17 February 2018 she was at the shops during the day.
GD denied assisting TM in showering DO or standing at the bathroom door. She denied asking TM to put cream on DO's rash or watching TM apply the cream to DO's rash or being in the bedroom when this occurred.
DO in his evidence was adamant and consistent that when the acts occurred which are the subject of the four offences, GD was present and arranged or directed for TM to do the acts to him. His evidence was GD was standing within 1 metre from him on the two occasions TM showered him. He stated GD asked TM to apply cream on his rash and GD was present on one occasion when TM put cream on his rash. On one occasion when cream was applied to his rash by TM, DO said GD was standing at the end of his bed and the other occasion GD left the room to make TM's lunch.
The third factual issue in dispute
In TM's interview she said that she showered DO and put cream on his private parts once or twice a week. In cross-examination in the pre‑recording, TM disputed that she showered DO only on two occasions. In the interview, TM described putting cream on DO's private parts as the same routine over and over again. There is no other evidence to confirm this evidence of TM that there were other occasions when she carried out activity similar to the acts described in counts 1 – 4 of the indictment.
In TM's cross-examination in the pre-recording she denied that GD said to her to make things up about what DO had done.
GD gave no evidence about seeing or being aware of any acts when TM showered DO or placing cream on DO's rash. In those circumstances, her evidence does not assist in resolving the third factual issue in dispute.
DO's evidence was TM showered him and put cream on his private parts on two occasions only. This is consistent with what DO told the police during the search of his house on 8 July 2018.
The evidence from Silver Chain nurses' progress notes indicates that around the time the offences were committed by DO, staff from Silver Chain were regularly showering and dressing DO.
Findings of fact on the trial of issues
TM impressed me as a generally truthful and reliable witness in particular in her evidence as to how and why she participated in the acts with DO that constitute DO's offences. For a child of TM's age I found her to be an intelligent and articulate witness. TM was generally consistent throughout her evidence in the interview and pre-recording. She was prepared to concede some things she said in the interview may have been incorrect in the pre-recording.
TM was able to give significant detail in her evidence when describing the factual circumstances in which the offences were committed. She was adamant GD was not present on any occasion and GD did not arrange for her to commit the acts in relation to the offences DO has committed.
There are inconsistencies in the evidence of TM when compared to GD's evidence in the detail about how TM was disciplined by DO. I consider that there was also some exaggeration in the evidence of TM as to what DO made her do and how he disciplined her. But in relation as to why TM showered DO, why TM put cream on his rash and who was present when these acts occurred, there was a consistency between the evidence of TM and GD.
GD accepted that there were inconsistencies in her evidence and the short statement she made to a police officer on 10 April 2018. None of these inconsistencies relate to TM's behaviour. I am not satisfied the inconsistencies are sufficient to undermine GD's credibility in relation to her evidence that she did not arrange for TM to shower DO or place cream on his rash and was not present when TM carried out these acts on DO.
In assessing DO's credibility as a witness I reminded myself that DO is 77 years old with no previous record and his background indicates he is a person of previous good character.
I did not find DO a convincing witness. He was emotional during his evidence. He often could not answer simple questions without going into unnecessary detail.
I am satisfied on the evidence of TM and GD there was sufficient time for TM to do the acts relating to the offences which DO committed whilst GD was away from DO's house.
Although in relation to the first factual issues in dispute, the defence must only satisfy me on the balance of probabilities, I cannot be satisfied even at this level of proof of these factual issues. I prefer the evidence of TM and GD as to these issues over the evidence of DO. The evidence of GD generally corroborates TM's evidence as to these two factual issues in dispute.
I am not satisfied the defence has proved that GD arranged for TM to commit the acts on DO that constitute the indecent dealings by DO or that GD was present when the indecent dealings occurred.
On the evidence of the child TM alone, when I consider it against the evidence of DO I cannot be satisfied beyond reasonable doubt that the State has proved DO procured the child TM to indecently deal with him on any other occasions other than the two days when the offences the subject of the four counts on the indictment were committed.
Conclusion
In accordance with my findings of facts made on the disputed factual issues I will sentence DO on the following basis:
1.DO alone procured TM to commit the four offences.
2.GD did not ask, arrange, encourage or procure TM to apply soap to DO's naked body or apply body lotion to his groin.
3.GD was not at the house when the four offences were committed.
4.The four offences committed by DO on the two separate days in February 2018 were the only occasions that DO procured TM to indecently deal with him.
I certify that the preceding paragraph(s) comprise the reasons for decision of the District Court of Western Australia.
RR
Associate to Judge Prior19 SEPTEMBER 2019
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